Many people would be surprised to find out that a person can get a DUI as they pull into their own driveway. One might wonder, after happening to miss all the checkpoints and managing not to get pulled over by law enforcement en route, how it’s possible to get arrested at the destination; home, sweet home. The fact of the matter is this: if a person drove drunk, even if all they did was pull into the driveway, and the prosecution can prove it, they can still get arrested, charged, and convicted of a DUI.
But what if a person doesn’t even drive the vehicle? What if they don’t even turn the vehicle on?
Imagine a scenario where a person is drinking at home and they step outside to get something from the inside their car. If an officer happened to be driving by and noticed them stumble into their car, would that be sufficient evidence to warrant a DUI?
In most states, a driver can be charged with a DUI for being in “actual physical control” of a vehicle while under the influence. In other words, actual driving is sufficient but not required to be convicted. What determines whether a person had “actual physical control” of a vehicle? The answer is not always simple. Courts often look at a totality of the circumstances to determine whether the driver’s current or anticipated control of the vehicle presented a danger to himself or others at the time.
Many states list “actual physical control” as an element for the crime of DUI but often don’t fully describe what the phrase actually means. In Arizona, for example, a person can get a DUI they are 1.) under the influence while in actual physical control of a vehicle, or 2.) have a BAC of 0.08 percent within two hours of having actual physical control of a vehicle (consumption must have occurred during or prior to being in actual control of the vehicle).
The statute goes on to explain other aspects of Arizona’s DUI laws but does not clearly define “actual physical control.” While a jury must eventually decide whether a person is in actual physical control of a vehicle, they usually take into considerations such as:
- Whether the engine was running
- The location of the key
- The location of the driver at the time he or she was found in the vehicle
- Whether the person was awake or asleep
- The location of the vehicle
- Whether the headlights were on or off
- Whether the heat or air conditioner was running
- The time of day
In practice, actual physical control is meant to apply to situations where an inebriated person is found in a parked vehicle that, without too much difficulty, might become a danger to him or herself, others, or property.
Unlike Arizona and other “actual physical control” states, being in actual physical control isn’t enough in California. In California, a prosecutor must prove that a person actually drove their vehicle for there to be a conviction. While California does not necessarily deal with the intricacies of the “actual physical control” determination, there are some small nuances to existing California DUI laws.
Under California law, a driver must cause the vehicle to actually move, even if the distance is slight. Interestingly, in California, the car engine does not have to be on in order for the movement element of DUI to be satisfied. Even a person sitting in a car in neutral can be charged with DUI if that car rolls forward.
As you can see, the distinction between “slight movement” and “actual physical control” might seem trivial. However, the difference between them may be the difference between a person getting a DUI and not, depending on what state you’re in. Nonetheless, if you’ve been drinking, whether it’s in Arizona or California, just stay away from your vehicle altogether. Why leave it to the cops, prosecutors, and jury to determine whether you “slightly moved your car” or were in “actual physical control” of it?
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